Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. The website is at www.truthinjustice.org.

Thursday, May 28, 2009

The following was originally published in the Columbia (MO) Tribune on May 27, 2009.

Hoping a brother goes freeTV program re-creates trial of Dale Helmig.

By Terry Ganey

Wednesday, May 27, 2009

Columbia lawyer Kenny Hulshof’s performance as a special prosecutor in the murder trial of Dale Helmig will be re-examined in an unusual episode of “America’s Most Wanted” that will be televised Saturday.

“The show is designed to capture bad people and put them away,” said producer Dave Bolton. “This case jumped to our attention because it looked like a huge miscarriage of justice because the bad guy who did the crime was still out there and the innocent guy was put in prison for a crime he did not commit.”

“America’s Most Wanted,” scheduled for broadcast at 8 p.m. Saturday on KQFX-TV (Fox 38), will devote an hour to the investigation and trial of Helmig, now 53, who in 1996 was convicted of murdering his mother. He was sentenced to life in prison without parole.

The body of Norma Helmig, 55, was found in the flood-swollen Osage River near Linn on Aug. 1, 1993. A concrete block had been tied to her body with a nylon rope.

Although Dale Helmig usually lived with his mother near Linn, he said he spent the night of her murder at a motel in Fulton because flooding had blocked his route home. But Osage County Sheriff Carl Fowler said there was a window of time in which the floodwaters receded long enough to give Helmig an opportunity to commit the crime. Prosecutors said Helmig and his mother had argued over a $200 telephone bill.

Bolton said the program will focus on the sheriff’s investigation and re-create Helmig’s trial.

“When you look at the court transcript and read what the prosecution said and what the prosecution’s witnesses said happened, and you reinvestigate and find what really happened, you learn that the two do not mesh,” Bolton said. “Any objective person looking at the case and looking at the facts and looking into this criminal trial would say he did not get a fair trial and deserves another shot at justice.”

Hulshof, who worked as a special prosecutor for then-Attorney General Jay Nixon, helped argue the case against Helmig. Hulshof did not respond to a request for comment. In previous interviews he said he believed Helmig was guilty as charged and that it was his duty “to try to convince the jury of that.”

“Whatever their decision was would have been justice in that case,” Hulshof said in a 2005 interview. “And they unanimously found him guilty.”

In January, a judge overturned a murder conviction in another Hulshof-argued case. Cole County Circuit Judge Richard Callahan ruled evidence was withheld in the case of Joshua Kezer, who spent more than 14 years in prison for murder. Hulshof said he also stood by that conviction.

Hulshof served 12 years in Congress and was the unsuccessful Republican candidate for governor against Nixon last year. Hulshof is now an attorney with the Polsinelli Shughart law firm in Kansas City.

Helmig, who is being held at the Western Missouri Correctional Center in Cameron, has insisted he is innocent of the crime and that he loved his mother. Two previous documentaries have raised questions about his case. In 2000, a pilot television show, “Was Justice Denied,” challenged the outcome of Helmig’s trial. Later, students at Illinois State University in Normal completed “A Matter of Innocence: The Dale Helmig Story.” In 2005, the St. Louis Post-Dispatch published “Questions of Justice,” a three-part series on Helmig’s case.

Dale Helmig’s younger brother, Richard Helmig of Rocky Mount in Morgan County, contacted “America’s Most Wanted” several years ago about his brother’s predicament.

“I believe he is 100 percent innocent,” Richard Helmig said. “We’re hoping that somebody might call in with some knowledge about the case.” He said “America’s Most Wanted” would protect the identities of those coming forward with new information.

Helmig said he talks to his brother in prison every day by phone. “He’s holding up well,” Richard Helmig said. “He has a lot of high hopes.”

The recent attempt by a lawyer to remove Supreme Court Justice Michael Gableman from a case is a foreboding indicator of a grave problem:

Wisconsin's system of electing justices is putting at risk our trust in fair, impartial justice from our highest state court.

The best solution is a reform called merit selection.

The request that Gableman remove himself from a case concerns a pledge he made during his 2008 campaign for a seat on the Supreme Court. Gableman said he would not "look for loopholes to put criminals back on our streets."

Lawyer Robert Henak claims the statement shows bias or the appearance of bias against Henak's client, appealing a conviction by claiming ineffective counsel at his trial.

Whether Henak's request has substance -- or is nothing more than a lawyer trying every possible argument for his client -- will be up to Gableman, and potentially the other justices, to determine.

However, the request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin's have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises. "Obviously, (Henak's) motion points out the problem as the race has become more issue-oriented," former Supreme Court Justice Janine Geske told the Milwaukee Journal-Sentinel.

More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.

The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?

Concern is so widespread that the state Supreme Court justices will conduct hearings this fall on whether judges must remove themselves from cases involving campaign contributors. In addition, the U.S. Supreme Court is soon to decide a West Virginia case about a state supreme court justice who remained on a case involving a campaign supporter.

Moreover, as if the current situation weren't questionable enough, "You ain't seen nothin' yet."

Wisconsin law has previously tried to restrain how far judicial candidates can go in making issue-oriented campaign promises. But that restraint is headed to the scrap heap. Court rulings in Wisconsin and elsewhere are paving the way toward full-blown partisan judicial elections.

At the crux of the problem is the threat to the checks and balances so fundamental to American government. Our lawmakers and governors are supposed to be partial to agendas that reflect the will of the majority. That's why we elect them by majority vote.

In contrast, the judicial branch -- especially supreme courts -- serves as an important check on the majority's power to trample on minority rights guaranteed by law.

When justices are elected after big-money campaigns in which partisan sides back candidates partial to their politics, the system of checks and balances is jeopardized.

And so is our trust in the court's fairness.

Reform is required. Merit selection is the right choice.

What’s merit selection?

The State Journal editorial board supports merit selection as an alternative to Wisconsin’s Supreme Court elections, which have become increasingly influenced by partisan politics and misleading ads sponsored by outside interests.

The best merit selection systems employ a diverse, nonpartisan committee appointed by a variety of sources.

The committee recruits candidates and, in a public process, evaluates each according to character, competency, experience and related qualifications.

The committee then submits a list of finalists to the governor or another authority, who makes the selection from the list.

Justices are held accountable for their performance through periodic reviews by the committee or by voters who decide whether to retain a justice in a yes-or-no, uncontested election at the end of a term.

Twenty-four states and the District of Columbia already appoint their highest courts through merit selection. Merit reform is under discussion in Texas and Pennsylvania. In neighboring Minnesota merit selection legislation won committee approval this year before stalling as lawmakers dealt with a budget crisis.

For a fuller explanation of a good merit selection system, see the description of Arizona’s process

Friday, May 15, 2009

When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.

Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.

I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.

Chatman's story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.

As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.

The fault in Chatman's case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.

Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.

Chatman's case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?

For years, Texas has led the nation in the number of executions. Why don't we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?

For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.

I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.

But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let's get this system fixed.

James A. Fry was a Dallas County assistant district attorney from 1980 to 1982 and currently practices family law in Sherman. His e-mail address is jamesfrypc@verizon.net.

Saturday, May 09, 2009

Texas Justice on TrialA new movie and TV show spotlight the legacy of race and injustice in the Lone Star StateRadley Balko | May 8, 2009

The new movie American Violet is based on the real story of Regina Kelly, a woman from the small town of Hearne, Texas who was wrongly arrested during a drug sweep on a public housing complex. Residents say the sweeps happened every year. Cops toting big guns and dressed in SWAT gear would jump out of moving vans (and once even a helicopter) and proceed to weed out a large portion of the town's black population. In November 2000, Kelly was one of 26 arrested. All but one of them were black. She was innocent. (At first she thought she had been arrested for overdue parking tickets.)

Facing 15-20 years in jail for selling drugs in a school zone, Kelly was pressured by her public defender to take a plea that would have given her probation. Other women in the complex had already done so, including some that Kelly suspects are also innocent. She refused. Pleading guilty would have made her a felon, costing her to forfeit her housing and possibly lose custody of her children. So she waited for her trial.

Five months later the charges were dropped. During the first trial that resulted from the mass arrests, it came out that the police informant—whose word was basically the only evidence that the police had in many of the cases—had been lying. But by that point several people had already accepted plea aggrangements and been duly convicted.

Thus far American Violet has been warmly reviewed. But some critics have balked at the movie's ham-handedness, noting that the villains—the racist district attorney and the hapless public defender—come off as flat and cliched. They're right. Much of the movie does follow the worn template of the southern courtroom drama, right down to the fish-out-of-water Jewish lawyer from the American Civil Liberties Union who awkwardly arrives in town to save the day.

But there's no reason to blame screenwriter Bill Haney. That's how the story actually happened. Sure, it would be nice to show a district attorney who had learned from his mistakes, who vowed to temper his pursuit of future convictions by admitting that launching broad drug sweeps based only on the word of shady informants will sometimes result in the arrest of innocent people.

The problem is that if the film had shown that sort of character development, it would no longer be true to the story it's based on. Texas District Attorney John Paschall didn't change one bit. After dropping the charges against Kelly and the others who hadn't yet accepted plea bargains, he said he was still certain they were guilty—just as he does in the movie. He told the Dallas Morning News, "The only way I'd watch [American Violet], I'd have to be handcuffed, tied to a chair and you'd have to tape my eyes open."

If American Violet feels preachy and overbearing at times, it's because the truth itself is sometimes hard to believe. The new reality show Dallas DNA, which debuted last week on the cable network Investigation Discovery, is a good illustration. The show follows Dallas District Attorney Craig Watkins as he attempts to uncover and correct the wrongful convictions of his predecessors, most notably the longtime law-and-order legend Henry Wade.

Watkins, a former defense attorney, became Texas's first black district attorney after being swept into office in the anti-GOP backlash of 2006. He has since made national headlines by setting up what he calls a Conviction Integrity Unit, which consists of assistant district attorneys whose sole job is to work with groups like the Texas Innocence Project to find possible incidences of wrongful conviction.

In an interview with Reason last year, Watkins discussed how he's trying to purge his office of the poisonous culture that long pervaded its halls, a culture so corrupt that Watkins says prosecutors considered getting the innocent convicted as guilty to be a badge of honor—a testament to their power in the courtroom.

That might seem far-fetched until you consider that DNA testing has so far exonerated 18 people in Dallas, which is more than any other city in the country (and more than most states). And by Watkins own admission, he is really just getting started. His office is currently reviewing more than 100 other cases, and there are hundreds more to sort through. And these, of course, are only those cases for which DNA testing could be dispositive of someone's guilt.

Dallas' hang 'em high culture was uniquely oblivious to concepts like fairness and justice over the years, and the high number of exonerations is likely to rise. Consider this: Facing a budget shortfall in the the early 1980s, the county started sending its biological evidence to a private lab for storage. That evidence has been preserved, allowing Watkins' Conviction Integrity Unit to go back 30 years in search of wrongful convictions. In other jurisdictions, evidence from older cases has usually deteriorated, or has been destroyed.

Dallas DNA isn't fictionalized, but it's just as moving in places as American Violet. More notably, viewers unfamiliar with groups like the Innocence Project or with the spate of DNA exonerations we've seen over the last decade may well find parts of the show just as implausible as the more melodramatic portions of the movie.

After 40 years of "get tough on crime" rhetoric and policies, we can now clearly measure the impact on the country's criminal justice system. The sort of multi-jurisdictional drug task forces that led to the raids and wrongful arrests in Texas may have been phased out in that state, but they still thrive—complete with federal funding—in most other states. Watkins has made headlines precisely because he's such a rare specimen, a prosecutor who is actively seeking out and correcting wrongful convictions, instead of fighting like hell to preserve them.

In that sense, both Dallas DNA and American Violet have satisfying endings. You're left with the feeling that justice prevailed, even if it took a long time coming. For productions dealing with the inadequacies of the criminal justice system, that may be the most glaring "truth is stranger than fiction" moment of all.

About Me

Truth in Justice Files is the editorial adjunct to Truth in Justice, the organization and website founded to educate the public about the criminal conviction of wholly innocent people. Members of the Board of Directors are Sheila Berry, Doug Berry, Ira Robins, Martin Yant, and Dennis Fritz